A meeting of the Waterfront Advisory Committee of the Village of Croton-on-Hudson, New York was held on Wednesday, September 2, 2009 in the Municipal Building.

MEMBERS PRESENT: Fran Allen, Chairperson

Charles Kane (taking Stuart Greenbaum's place)

Robert Luntz

ABSENT: Richard Olver

Demetra Restuccia

ALSO PRESENT: Daniel O'Connor, P.E., Village Engineer

1. Call to Order:

The meeting was called to order at 8:00 P.M. by Chairperson Fran Allen.

2. Application for a Steep Slope Permit for the Construction of a Single-Family Dwelling at 57 Old Post Road North (Sec. 67.20 Blk. 2 Lot 27) – Consistency Review:

John Gochman, Esq., attorney for the Applicant, was present.

Mr. Kane noted (for the record) that he is present tonight to take the place of WAC member Stuart Greenbaum from the Water Control Commission.

Chairperson Allen suggested that the WAC review the Coastal Assessment Form (CAF) for the Francy Steep Slope application. She noted that this application has been referred to the WAC by the Planning Board for the purposes of making a recommendation to the Planning Board on the consistency of this application with the policies of the Local Waterfront Revitalization Program (LWRP).

Mr. Kane said that he had no questions on page 1 of the CAF. He referred to B.8 on page 2, “Percent of site which contains slopes of 15% or greater” and noted that the answer given is 95%, to which Mr. Luntz told Mr. Kane that the Planning Board has, indeed, received documents/plans from the Applicant’s engineer that show the 95% slopes. Mr. Kane read aloud Policy 11A of the LWRP pertaining to the use of erosion and sediment control measures for safeguarding the welfare of persons and protecting Village properties. Mr. Kane said that he would think that this policy would apply to the project being proposed. Mr. Gochman asked if this policy would come into effect if a proposed activity were near a river or stream, to which Mr. Kane replied that the policies of the LWRP are in effect for all
properties in the Village. The LWRP covers the entire Village. Mr. Luntz suggested that, at this point, rather than reviewing the policies of the LWRP the WAC could continue their review of the CAF; once reviewed, the WAC could (then) go through the LWRP policies.

Chairperson Allen referred to C.1(d), “Will the proposed action be located in, or contiguous to, or have a potentially adverse effect upon…..natural protective features in an erosion hazard area?” and noted that the answer given is “no.” She would think that the answer should be “yes.” Mr. Luntz asked if, on the coastal area map, there is an area specifically defined as an “erosion hazard area.” Chairperson Allen said that she does not think so; however, denuding the slope on this (the Francy) property of its vegetation would create a situation that could potentially have an adverse effect on downhill properties. She would think that the answer to this question should be “yes.” Mr. Kane said that he would agree with Chairperson Allen, considering the (degree of) steep slopes on this
property.

Chairperson Allen referred to C.3(j), “Will the proposed action involve or result in…..construction or reconstruction of erosion protective structures?” and noted that the answer given is “no.” Chairperson Allen said that she would think that the answer should be “yes.” The proposed action would involve the construction of retaining walls, which are “erosion protective structures.”

Mr. Kane noted that the answer for C.3(l), “Will the proposed action involve or result in…..removal of ground cover from the site?” is “yes” with an asterisk after it. The asterisk refers to a note provided by the Applicant, which states that “Some trees and brush will be removed to allow the house, driveway and other associated and accessory site features to be constructed. After construction the disturbed areas will be reseeded.” Mr. Kane said that he would think that this is not a deep enough explanation of the measures which would undoubtedly be required to mitigate the disturbance to this site both before and after the house [construction]. He agreed with the Applicant that the answer to this question should definitely be “yes.”

Mr. Luntz referred to question C.4(a) in the CAF pertaining to projects located adjacent to the shore and question C.4(b) pertaining to project sites that are publicly owned and said that he would agree with the Applicant that these two questions are not applicable to this application.

Chairperson Allen said that she has a question on C.4(f), “Will the surface area of any waterways or wetland area be increased or decreased by the proposals?” Chairperson Allen noted that the answer given to this question is “no.” The Village Engineer said that, in so far as wetlands areas are concerned, the subject property is more than 120 feet from a regulated wetlands area. It is outside the buffer area. Mr. Kane questioned whether waterways and/or wetlands areas would be affected by this proposal. A swale is redirecting storm water through the back of the house and down the slope. He asked where the water would go when it reaches the base of the slope, to which the Village Engineer replied that surface water would be directed to the Village’s pipe system. Mr. Kane said
that, at this point in time, the water flows downhill according to the contours of the land. The house, once built, would block the flow of water. The water is being redirected to the back. He (Mr. Kane) would think that there would be an increase in the flow of water to the swale resulting from the construction of the house. The Village Engineer said that he does not know if there would be an increase in the flow of water. The Village Engineer noted that, ultimately, water flows to a low point i.e., through the properties situated downhill, to a wetland area and finally into a stream. The Village Engineer said that question C.4(f) deals with surface areas. The particular paths of drainage are (would be) altered by swales and by the house itself. The question is: Would there be an impact? The Village Engineer suggested that he could ask the Applicant’s engineer to put on the plan(s) something, perhaps an arrow, to indicate the
drainage flow. The Village Engineer said that the wall being proposed would create a swale in the back. The Applicant’s engineer does not show on the plan(s) a cross section of this swale. The Village Engineer said that, in his view, the best solution would be to put in a riprap and let the water going downstream fan out onto the hillside.

Mr. Kane said that he would be concerned that the swale would funnel the water and, in so doing increase the velocity of the water, to which the Village Engineer said that if one were to follow the flow of water in each particular path, one would find that only a small drainage area between the walls (driveway wall and new retaining wall) would be channeled. The Village Engineer reiterated that he would think it would be better to have a rip rap put in. Mr. Luntz said that he would agree with Mr. Kane’s concern about the storm water runoff; however, he would think that the answer to C.4(f) should still be “no.”

Chairperson Allen said that the stream that goes down off this (the Francy) property is regulated under the Clean Water Act. Regulated waterways such as this one should not have their flows changed. If water were being redirected off of this site, then, this would affect the flows, to which Mr. Luntz said that we do not know that this is the case. Mr. Luntz added that the direction of the water will change but we do not know if this would affect the surface areas of a waterway. Chairperson Allen said that she would think that one would have to assume that there is a potential for this to happen.

Mr. Kane said that the Village piping leads down to Brook Street. He asked if that piping could handle the additional flows, to which the Village Engineer noted that it is (would be) a minor amount of additional flow. He would have to check into this. The Village Engineer noted that Old Post Road North is steep in that location. The majority of the Village system is not designed for a 10-year storm event. He added that the Village piping, as it currently exists, could not handle a 100-year storm event.

Mr. Kane referred to C.4(g), “Does any mature forest (over 100 years old) or other locally important vegetation exist on this site which will be removed by the project?” and noted that the answer given is “no.” He would think that the answer to this question should be “yes” in that “the locally important vegetation [which would be removed] holds this site together.”

Mr. Kane referred to C.4(o), “Will the project alter drainage flow, patterns or surface water runoff on or from the site?” and said that the answer given is “yes.” Mr. Kane said that the Applicant provides additional information/comments under Section D as follows: “Drainage area being slightly altered to reduce drainage flows to the adjacent downhill lot. The attached engineer’s drainage report shows that the port [post] development drainage flows are less than the predevelopment drainage flows.” Chairperson Allen pointed out the “typo” (“port-development” should be “post-development”). Mr. Kane said that he would change the wording of the first sentence from “Drainage area being slightly altered to reduce drainage flows…..” to “Drainage area being significantly altered…..” Mr. Kane noted that the drainage area would be going through a considerable change. He would question if the Village infrastructure would be able to handle the additional flows. Mr. Gochman stated that the
drainage report prepared by the Applicant’s engineer shows that the post-development drainage flows are less than the pre-development flows.

The Village Engineer noted that the impervious surfaces being proposed would generate a lot of runoff. The drainage report was based on a 10-year storm event. The Village Engineer noted that the drywells could handle a 10-year storm event; however, there are cases where the water would go into the Village system. The question is whether the Village system could handle the flows. The Village Engineer said that this would have to be analyzed. Old Post Road North is fairly steep in that location. He would have to do the calculations. Mr. Kane said that he would be concerned about whether the pipes would work. He is concerned about the potentially adverse impacts of redirecting the flow and the flow being channelized at the low point of the property. Mr. Kane said that there is
not enough information about what the flow would be in that location. Chairperson Allen noted that the Applicant claims that the post-development flows are less than the pre-development flows. She does not see how that could be the case. Even if there were, overall, the same amount of water, this water would now be channeled rather than just flowing across a hillside. She would think that the “new” drainage would be more problematic for causing potential damage. The Village Engineer noted that, with respect to drainage, there are multiple components to be considered including flow rate, peak flows, water volume, direction of flows, etc. Chairperson Allen asked if there is a number that quantifies the impervious surfaces being proposed for this site, to which the Village Engineer replied that the Applicant’s engineer gives a number in his drainage report.

Mr. Kane said that he has a question regarding the drywells. Mr. Kane said that he noted, in reviewing the application materials, that the type of soil on the site is identified as “sandy loam.” He questioned whether by placing the two drywells in close proximity to each other and concentrating all surface flows to those areas, it is (would be) possible to over-saturate the sandy loam soil(s). If this were the case, then, slippage would occur. The Village Engineer said that there is probably an improvement to the design that could be made. He explained (again) his idea of putting in riprap to fan the water out. Mr. Luntz noted that it would be better if, at the end of the wall the swale would disperse the water instead of forcing the water to go straight down. The Village Engineer said
that he would recommend that riprap and a level spreader be installed at the end of the wall. The water would go into a leaching trench that would bubble out from the ground. By spreading the water out, the water is less concentrated, and the water has less capacity to erode the soil.

Mr. Luntz suggested a few changes in wording to the Applicant’s comments in Section D for question C.4(o). Instead of “Drainage area being significantly altered to reduce drainage flows to the adjacent downhill lot,” he would say, “Drainage area being significantly altered to redirect drainage flows…..” At the end of that sentence he would change the wording “…..to the adjacent downhill lot” to say either “…..around the house” or “…..on the lot.” Mr. Luntz also recommended that at the end of the next sentence, the words “to the adjacent downhill lot” be added.

Mr. Kane noted that the answer given to question C.4(p), “Will best management practices be utilized to control storm water runoff into coastal waters?” is “yes.” Mr. Kane said that, in the additional information/comments provided by the Applicant, it states that, “Soil erosion and sediment control devices will be installed and maintained in accordance with NYSDEC best management practices.” Mr. Kane pointed out that the Applicant does not say when, during the construction process, these erosion and sediment control devices would be installed. Mr. Kane suggested that, perhaps, the Applicant could say that these erosion and sediment control devices would be installed according to the construction plan. The Village Engineer recalled that there was a construction sequence given on the Applicant’s
plan(s). The Village Engineer said that the Village would require that a silt fence be installed after the tree cutting but before the removal of stumps.

Chairperson Allen said that she would think that the WAC is dealing with an incomplete project proposal tonight. She said that the WAC would “need completeness” to evaluate this proposal. Mr. Luntz added that some questions that came up during the Planning Board’s review of this application have still not been answered.

Chairperson Allen read aloud question C.4(r), “Will the project cause emissions which exceed federal or state air quality standards or generate significant amounts of nitrates or sulfates?” The answer given is “no.” Chairperson Allen expressed concern about the amount and type(s) of fertilizers that would be required for the reseeding of this property. She asked what kind of fertilizers would be put on this slope for the reseeding, to which the Village Engineer said that he would think nitrates would be used.

The WAC went through the LWRP and discussed the policies, which they felt were relevant to this steep slope application. Mr. Kane referred back to question B.8 in the CAF, “Percent of site which contains slopes of 15% or greater,” and noted that the answer given is 95%. Mr. Kane read aloud LWRP policy 11A as follows:

“Erosion and sediment control measures shall be undertaken in order to safeguard persons, protect property, prevent damage to the environment, and promote the public welfare by guiding, regulating, and controlling the design, construction, use and maintenance of any development or other activity which disturbs or breaks the topsoil or results in earth movement.”

Mr. Kane referred to the top paragraph on page III-19 of policy 11A and read aloud the following sentence from that paragraph: “Toward this end, new construction is to avoid areas that contain steep slopes (areas with an average slope of or greater than 15% as measured from the vertical rise of two foot contours in a 30 foot horizontal length), and existing vegetation in such areas is not disturbed.” Mr. Kane said that he would view the aforementioned statement in policy 11A as the means of “protecting the slopes and adjacent [property] owners from erosion and sedimentation.” Mr. Luntz said that judging from the excerpt that Mr. Kane has read tonight from LWRP policy 11A he would think that this action (the Francy steep slope application) would be inconsistent with policy 11A, to which Mr. Kane
and Chairperson Allen both agreed.

Mr. Gochman referred to the last paragraph in policy 11A, which states that the only significant damage caused by flooding and erosion occurred in the 1840’s when the Croton Dam broke and sediment filled the Croton River and Bay. Mr. Kane pointed out that the Village’s LWRP law was written prior to Hurricane Floyd. He pointed out to Mr. Gochman that the Village’s LWRP law is a local law tailored just for the Village of Croton-on-Hudson. Chairperson Allen noted further that the Village’s LWRP has not been revised since 1992. The Village Engineer referred to the paragraph about the dam breaking and said that it would seem that this paragraph pertains specifically to natural disasters involving the Westchester County Office of Civil Defense. The Village Engineer noted that the flooding that took place years ago
on High Street, for example, would not reach a level to involve the Office of Civil Defense.

Mr. Kane said that the answer given to C.3(j) in the CAF, “Will the proposed action involve or result in…..construction or reconstruction of erosion protective structures?” should be “yes” rather than “no.” He pointed out that, as noted earlier in the meeting by Chairperson Allen, the proposed action would, indeed, involve the construction of retaining walls, which are “erosion protective structures.” Mr. Gochman noted that in the additional information/comments provided in Section D for question C.4(p),the Applicant states that, “Soil erosion and sediment control devices will be installed and maintained in accordance with NYSDEC best management practices.” Mr. Gochman said that he would think that this answers the question “to some degree of certainty.”

Mr. Kane referred to page III-18 of policy 11A, which contains a list of 17 principles that must be applied to all development activities and said that he is not convinced that the drainage structures (swales, dry wells, etc.) being provided would follow these principles. Mr. Kane said that he would be concerned about the composition of the soils (sandy loam) and the potential for slippage of the slope. He referred to principle #2, “Adjacent properties shall be protected from sediment deposition,” and said that he is not convinced that the swale being proposed would protect the adjacent property owners. Mr. Kane said that he would think that this project also does not meet principle #3, “Development shall reflect the topography of the soils so as to create the least potential for erosion.” Mr. Kane said that, in his view, principle #4, “Natural vegetation shall be retained wherever possible,” is also not being met. Mr. Kane pointed out that all of the natural vegetation is being
removed from the steepest part of this property. Mr. Kane referred to principle #5, “Denuded areas and soil stockpiles must be stabilized within 15 days after final grade is reached,” and said that they (the Applicant) would have to maintain these stockpile areas. Mr. Gochman said that it is his understanding that the soil tests that were performed show that the soils are adequate to handle the construction of the house, to which the Village Engineer responded that soil testing was done “down to 8 feet” in the area where the dry wells are. Mr. Kane said that he would be concerned about the potential for erosion and slope destabilization when the soil becomes saturated in that location, to which the Village Engineer responded that further tests could be performed to see if the dry wells would be sufficient to handle the drainage.

Mr. Luntz reiterated that judging by tonight’s discussion of LWRP policy 11A, he would think that the Francy steep slope application would be inconsistent with this policy.

Mr. Kane referred to policy 13 of the LWRP and stated that this policy pertains to the length of time, in years, that erosion protective structures used for controlling erosion must be effective. This policy states that these structures/devices must be effective in controlling erosion for at least 30 years.

Mr. Kane read aloud policy 14 as follows:

“Activities and development, including the construction or reconstruction of erosion protection structures, shall be undertaken so that there will be no measurable increase in erosion or flooding at the site of such activities or development, or at other locations.”

Mr. Kane said that the same comments he made before about the swale and the Village infrastructure apply here. It is unknown at this point whether the swale being proposed and the Village piping system could handle the additional flows causing problems downhill. Mr. Kane referred to the top paragraph on page III-21 of policy 14 and read aloud the following sentence: “Stormwater runoff must be retained on-site, in detention ponds, and allow discharge at rates which do not over-burden the existing system and exacerbate flooding of village streets.” Mr. Kane said that he would think, from the wording/language in policy 14, that the proposed action is also not consistent with this policy. It is unknown at this point whether the drainage system being proposed would work. Mr. Kane said that, “We
don’t have enough information.”

Mr. Kane read aloud LWRP policy 33:

“Best management practices will be used to ensure the control of stormwater runoff and combined sewer overflows draining into coastal waters.”

Mr. Kane said that, for the same reasons, he would also find the proposed action to be inconsistent with this policy (policy 33). Mr. Gochman pointed out that in Section D of the CAF the Applicant states that the NYSDEC best management practices would be followed, to which Mr. Kane noted to Mr. Gochman that the Applicant would have to look at these NYSDEC practices to determine “what they mean and what you [the Applicant] have to conform with.” Mr. Kane said that, in so far as this LWRP policy (policy 33) is concerned, he is taking into consideration the swales being proposed, the potential for slippage, etc. He would, therefore, find the proposed action to be inconsistent.

Mr. Kane noted that, likewise, the LWRP policies 33A and 33B are concerned with (the impacts of) storm water runoff and erosion control.

Mr. Kane read aloud policy 37B as follows:

“Control of the development of hilltops, and steep slopes should be exerted in order to prevent erosion and minimize runoff and flooding from new construction.”

Mr. Kane noted that the explanation of this policy (policy 37B) goes on for the next two pages and is very specific and detailed as to what is required. There are 16 guidelines listed in this policy, which must be complied with. Mr. Kane read aloud four of the guidelines as follows:

Areas of steep slopes, where high cuts and fills may be required, should be avoided.

5. Natural protective vegetation should remain undisturbed if at all possible; otherwise, plantings should compensate for the disturbance.

6. The amount of time that disturbed ground surfaces are exposed to the energy of rainfall and runoff water should be “severely” limited.

8. The velocity of the runoff water on all areas subject to erosion should be reduced below that which would cause erosion.

Mr. Kane noted that quite a number of these 16 guidelines pertain to the subject (Francy) development. He said that he is not convinced that what is being proposed is consistent with these 16 guidelines.

Mr. Luntz said that, from tonight’s discussion, there are consistency problems with several LWRP policies. He noted the following policies: 11A, 14, 33, 33A and 37B. He would suggest that the WAC make a finding tonight that the proposed action is inconsistent with these policies.

The Village Engineer said that the WAC’s determination would be a preliminary determination, to which Chairperson Allen pointed out that it has happened before where the WAC has made a preliminary determination and then never had an opportunity to make a final determination. Chairperson Allen said that she would like the WAC to make a final determination tonight and base their final determination on the materials submitted for the WAC’s review. Mr. Kane agreed and said that he would think that this is (would be) fairer to the Applicant.

Chairperson Allen asked if there were any further comments from the WAC members, to which there were none.

Chairperson Allen entertained a motion to recommend to the Planning Board that, based on the information submitted to and/or presented to the WAC, the Planning Board should find this project to be inconsistent with the LWRP. Chairperson Allen noted that in their memorandum to the Planning Board, the WAC would call out the relevant LWRP policies. The motion was made by Mr. Kane, seconded by Mr. Luntz and carried by a vote of 3 to 0.

Mr. Gochman questioned how this determination of inconsistency would affect the Planning Board’s decision on this application. He said that he would think that the Applicant would probably want to have an opportunity to “remediate” their application and present revised documents/plans to the board. The Village Engineer told Mr. Gochman that the WAC’s recommendation would go to the Planning Board which, in this case, is the Lead Agency. The Planning Board would have to consider the WAC’s finding in their State Environmental Quality Review Act (SEQRA) determination. Chairperson Allen noted that a copy of the WAC’s recommendation should also go to the Village Board. She said that the Village Board is the “interface with [respect to] the Village’s conformance with the Coastal Zone Management
Program.” Mr. Gochman said that he thinks that it would be premature for the Planning Board to make a decision until such time as the Applicant has had the opportunity to respond to this “new” situation. Mr. Gochman said that the situation is different now in that “We now have a policy statement and [we] did not have that before.” Mr. Gochman questioned what kind of extension would be reasonable to request from the Planning Board, to which the Village Engineer said that the Village Attorney would have to review the law to see if the time frame could stop or be modified. The municipal law pertaining to public hearings states that a decision has to be made within 60 days of the closing of the public hearing. He would consult with the Village Attorney. Mr. Gochman asked if he could have the answer from the Village Attorney so that he would know how to proceed at the Planning Board meeting coming up next Tuesday.

Chairperson Allen said that she would work with the WAC secretary to prepare a memorandum to the Planning Board in time for the Planning Board meeting of Tuesday, September 8th.

3. Approval of Minutes:

The minutes of the Wednesday, August 5, 2009 WAC meeting were approved on a motion by Mr. Luntz, seconded by Mr. Kane and carried by a vote of 3-0.

4. Adjournment:

There being no further business to come before the Committee, the meeting was duly adjourned at 9:50 P.M.